State v Bomi [2024] PGNC 194; N10859 (14 June 2024)

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CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Sentencing Principles - Degree of participation in the commission of the crime - Sentencing guidelines on murder cases (Re: Manu Kovi) Appropriate Sentence - Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
State v. Jerry Nelson & Gima Sana CR Nos. 1165 & 1166 of 2022.
State v Jeremiah v. Peter & George Kuno CR. No. 503 & 505 of 2022
State v Sony Yauri & Willie Gideon [2018] PGNC 242; N7340
Anna Max Maringi v The State (2002) SC702
Simon Kama v The State (2004) SC740
The State v Iori Veraga (2005) N2921
Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008)
Ume v The State (2006) SC836
The State v Jackson (2006) N3237
The State v Christine Omui Cr. No. 384 of 2007
The State v Michael Gend Cr, No. 760/2011 (17the February, 2014)
State v Marai [2017] PGNC 67; N6693 (20 March 2017)
The State v Ngase Saomi, CR. No: 793/15
The State v Yapson Spoky, CR No. 436 of 2012
The State v Bake (2012) N4890
The State v Matai (2011) N4256
The State v Ilagi Ila (2017) N7262

1. NUMAPO J: This is a decision on sentence. The prisoners Ezekiel Bomi, Max Tangole and Paul Reu each pleaded guilty to one count of murder pursuant to section 300 (1) (a) of the Criminal Code and were convicted accordingly.

2. The facts to which they pleaded guilty were as follows; on the 31^st July 2023 the prisoners and the deceased were at Lipo village in the Talasea District. There was a fight going on between the prisoners and their relatives against the deceased person and his relatives. The deceased was armed with a shotgun. Ezekiel Bomi chased the deceased and chopped him with a bushknife whilst Max Tangole and Paul Reu chased the deceased’s relatives away. The deceased was attacked after his relatives have escaped.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

3. It is often difficult to state with certainty the type of sentence that fits the crime. There is no mathematical formula in sentencing. Every case is determined by its own peculiar facts and circumstances being the aggravating and mitigating factors, the extenuating circumstances and the gravity of the offence itself. The prevalence of the particular offence is also a consideration that is taken into account. All these have to be properly weighed up and balanced out in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921. It is trite law however, that the maximum penalty is reserved for the worst type case. See Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92.

4. The common law principles on sentencing provides a useful guide on sentencing particularly, that the sentence imposed is aimed at achieving a specific outcome, purpose or objective such as deterrence, rehabilitation, restitution and retribution. The sentence must reflect a purpose. The courts have, over the years, being guided by these principles in imposing sentences that are aimed at achieving those outcomes. These principles are well adopted in this jurisdiction. See: The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.

5. Counsels submitted that in considering the appropriate sentence the Court should be guided by the sentencing tariffs set for Murder cases in Manu Kovi v The State (2005) SC 789 (Manu Kovi Guidelines). The guidelines is set out here below:

CATEGORY	MURDER
Category 1	12 – 15 years
Plea Ordinary cases Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning Minimum force used Absence of strong intent to do GBH.
Category 2	16 – 20 years
Trial or Plea Mitigating factors with aggravating factors	No strong intent to do GBH Weapons used Some pre-planning Some element of viciousness.
Category 3	20 – 30 years
Trial or Plea Special Aggravating factors Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack Strong desire to do GBH Dangerous or offensive weapons used e.g. gun or axe Other offences of violence committed.
Category 4	Life Imprisonment
Worst Case – Trial or Plea Special aggravating factors No extenuating circumstances No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack Brutal killing, in cold blood Killing of innocent, harmless person Killing in the course of committing another serious offence Complete disregard for human life.

6. In the present case, Mr Bray for the State submitted that the Court should impose a long custodial sentence to reflect on the severity and gravity of the offence that resulted in a loss of life. This was a vicious mob-attack perpetrated on one person. It was pre-planned and offensive weapon namely, a bush knife was used to attack the deceased with a strong intent to do grievous bodily harm. The State submitted that a prison sentence of between 14-18 years is appropriate and should be imposed.

7. I should add that the Manu Kovi guidelines was developed as a result of an earlier decision of the Supreme Court in Anna Max Maringi v The State (2002) SC 702 following concerns that manslaughter sentences have surpassed the tariff on murder sentence hence the need to review and set new tariffs on murder sentences to render consistency with manslaughter sentences. The Court called for a review in the following terms:

“.....whilst it is clear to us that sentences for manslaughter have increased significantly over the years, the same cannot be said of murder sentences. It seems to us that manslaughter sentences have surpassed the tariff for murder cases set out in the often quoted decision of The State v Laura (No.2) [1988-89] PNGLR 319 and other cases such as Lawrence Simbe v The State [1994] PNGLR 402. Therefore, there is a need now for the Supreme Court to develop new tariffs for murder sentences to render consistency with manslaughter sentences. As this case is concerned with manslaughter, we leave that task for the Supreme Court on another occasion, in an appropriate case.”

8. Defence on the other hand, submitted that although s. 300 of the Criminal Code prescribed the maximum sentence of life imprisonment for murder, this is subject to s 19 (Criminal Code) that gives the Court a wider sentencing discretion to impose a lesser sentence. It urged the Court to consider imposing a lesser sentence in the exercise of its discretion as the offence does not fall under a category of worst type offence. Section 19 however, does not prescribed the range of lesser sentences to be imposed and left it to the discretion of the court.

9. Mr Loloma for the Defence submitted that the present case falls midway between category 2 of the Manu Kovi guidelines and therefore the starting point is between 14-18 years imprisonment. Whilst the Court has a wider sentencing discretion under section 19, it is expected that any sentence imposed should be consistent with the current trend on sentencing in similar offences. This is to avoid disparity and inconsistencies in sentencing so that like offences are treated alike. I made this observation in the case of The State v Ilagi Ila (2017) N7262 (15^th May 2018) where I said:“ Whilst I agree that sentencing discretion should be left to the trial judge alone, I also accept that sentencing guidelines are necessary to ensure that there is some degree of uniformity, parity and consistency in sentencing for like cases”.

10. I am of the view that sentencing guidelines or tariffs such as Manu Kovi merely provide as a guide and does not in any way, take away or interfere with the sentencing discretion of the sentencing authority. It is up to the trial judge to decide whether to apply the sentencing tariffs or not. The substantive legal basis for sentencing discretion is provided under section 19 of the Criminal Code. This gives the sentencing authority the ultimate discretion on sentencing. It is also an extension of a broader judicial discretion that judges exclusively enjoy in the discharge of their judicial functions.

11. A number of case laws were cited by both the State and the Defence in their respective submissions on sentence to show the current sentencing trend on murder and submitted that the court be guided by them. I find these cases very useful and referred to them below.

12. The two prisoners were at Dami Research Station near Kimbe town when they attacked the deceased Romanus Joseph Lokono who had come to apologize to one of them regarding a fight they had earlier. Their conversation developed into an argument and they attacked Romanus. It was a mob attack and they used a scissor to attack the deceased which caused his death.

14. The two prisoners were at Galai No. 1 on the 25^th November 2021. At around 4:30pm the prisoners and others combined and fought with the deceased (Andrew ToRuga) and hit him with stones. Andrew ToRuga sent word to his relatives to help him as he was being attacked. His relatives arrived at Galai No. 1 and attacked the people there. The Galai community then mobilized and went into Andrew ToRuga’s oil palm block and chased away the people who came to assist him.

15. Prisoners Jeremiah Peter and George Kuno attacked the deceased with a bushknife and chopped him on his right leg causing him to fell to the ground. George Kuno hit Andrew ToRuga with a stone and also used an iron pipe on the head. He subsequently died from the injuries he received from the attack.

17. Prisoners pleaded guilty to one count of murder. Prisoners were drunk and approached the deceased and others, demanding for money. The deceased refused to give them money and prisoners swore at them. The deceased then assaulted Willie Gideon who then went and enlisted help from Sony Yauri and both returned and attacked the deceased. They used a knife to attack the deceased. The deceased received knife wounds to his left chest and died.

19. The circumstances of the case is somewhat similar to the present case. In this case, the prisoner, a juvenile went out with his friends. They were armed with bush knives and a homemade shotgun. They followed a bush track and met the deceased and his friends. The deceased had some money. They set on the deceased and his friends and attacked them. The deceased suffered knife wounds to his hands and legs and was hot at the back. He died from the injuries sustained.

20. The offender pleaded guilty to one count of murder. He cut the deceased on his head and thigh after the deceased raped his niece. The background of the case is that the deceased has a history of insulting the Prisoner’s family. On the first occasion, he attempted to rape the Prisoner’s niece and she ran away naked. Despite the village court order for him to pay compensation he again assaulted the victim while she was alone and raped her. When she refused, he stabbed her with a knife. She ran away bleeding. Upon seeing that, the offender took his axe and chased the deceased. When he finally caught up with him, there was a struggle between them. The offender overpowered the deceased and cut him on the back of his head with the axe and further cut him on the thigh.

The offender paid compensation before his arrest and committed to the National Court. The court imposed 18 years less the pre-sentence custody period.

21. The offender pleaded guilty to one count of Murder of his brother-in-law. The facts are that the offender inflicted serious injuries on the deceased on his neck, head and other parts of the body. The offender submitted there was de facto provocation, in that the deceased who was married to the offender’s sister did not take responsibility to look after her and their children. On many occasions, the deceased’s wife would go to the offender to assist her in looking after the children. Further the deceased had extra-marital affair and got a woman pregnant with his child. On the day of the incident, the offender went to his coconut garden and found the deceased and his children picking coconuts. When he confronted the deceased, he took out his knife and wanted to fight with the offender. The offender then attacked him and inflicted serious injuries to his body which resulted in his death. The court accepted that in mitigation as the offender had the benefit of doubt.

The court held that the case came under Category (3) of the Manu Kovi guidelines, attracting a sentence between 20-30 years. After considering all the relevant factors, the court imposed the head sentence of 22 years. The court deducted the pre-sentence custody period of 1 year and 11 months leaving the balance of 20 years and 1 month. None of the sentence was suspended.

22. The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day of the incident, the offender and his friend armed themselves with long bush knives and went to the deceased’s house. It was very early in the morning and they were still asleep. When they finally woke up, the offender and his friend came out of their hiding place and attacked the deceased who was holding his grandchild. The offender inflicted two knife wounds to the deceased’s neck. He fell down motionless and they escaped. The court imposed 24 years with none of the sentence being suspended.

23. The aggravating factors, the extenuating circumstances and the mitigating factors are taken into account in deciding what should be the appropriate sentence but as to how much weight is given to those factors is in the discretion of the court. Other factors such as the gravity of the offence and the prevalence of a particular offence is also taken into account in deciding an appropriate sentence.

24. Where more than one offender is involved, consideration is given to the extent of involvement of each of the prisoner and the role he or she each played in the commission of the offence. This is taken into account to determine their levels of criminal culpability. The lesser the role they play the lesser sentence they get. The Supreme Court in Ume v The State (2006) SC 836 described the aggravating factors, extenuating circumstances and mitigating factors in the following terms:

“The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.

As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself; factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances includes de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.

As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first time offender, guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.”

25. In the present case, I find from the facts that the prisoners acted together in concert to carry out the attack on the deceased. Deceased was armed and were with his relatives when he was attacked. Prisoners Max Tangole and Paul Reu chased the deceased’s relatives away leaving him vulnerable to attack. Prisoner Ezekiel Bomi took the opportunity to attack the deceased when he realized that the deceased’s relatives have ran away.

26. I therefore, find each of the prisoners equally culpable and must be held responsible for the death of the deceased.

27. In the Pre-Sentence Report the prisoners stated that they were members of the Assembly of God Faith (AOG) and attends the Liapo Local Church every Sunday. They expressed remorse and very sorry for what they did. They asked to be given a non-custodial sentence so they could serve their term outside.

28. Having considered the facts of the case and the circumstances including the aggravating and mitigating factors and the extenuating circumstances, it is obvious that the attack was pre-planned with the use of an offensive weapon, namely a bushknife to carry out the attack. There was a strong desire to do grievous bodily harm (GBH). This was a vicious mob attack and the deceased suffered horrific wounds.

29. The question regarding the gravity of the offence was decided by the Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38 and it was held that each case must be determined on its own peculiar circumstances:

“We say that it is not a matter of tariff for a particular type of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the court at people who take the law into their own hands.”

30. Applying this rationale, I am of the view that this case appropriately falls under category 3 in the Manu Kovi guidelines. Hence the starting point on the term of imprisonment would be between 20 – 30 years. However, I am also mindful that the Court is not necessarily limited or restricted to stay within the confines of the prescribed sentencing range and has a wider sentencing discretion to also consider other lesser sentences

31. I also take into account the degree of participation and what role each prisoner played in committing the offence. And I am guided by the facts of the case and what each prisoner said in the Police Record of Interview and also in their allocutus. The degree of their criminal culpability will be depend on the role they each played. The greater their role the more culpable they are and this will be reflected in their respective sentences. In this case however, I find that the role played by each prisoner directly contributed to the demise of the deceased. For example, the deceased was armed with a shotgun and was present with his relatives. He was safe amongst his relatives until they were chased away and he was on his own exposed to danger. If his relative had not ran away he would probably not have been killed. I can only speculate. The two other prisoners who chased the deceased’s relatives are as culpable as the prisoner Ezekiel Bomi who delivered the fatal blow that caused the deceased to die.

Orders Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence

National Court of Papua New Guinea

State v Bomi [2024] PGNC 194; N10859 (14 June 2024)